The Tilden Trust, and Why It Failed

THE supposed purpose of the late Samuel J. Tilden to establish by his last will a free library and reading-room in the city of New York, through the agency of what was termed the “Tilden Trust,” and the lamentable failure of that purpose are still fresh in public recollection. The failure of the Tilden Trust has been emphasized by the recent judgment of the Supreme Court of the State of Illinois, rendered on the 19th of June last, affirming the validity of the will of Mr. John Crerar, late of Chicago, devoting a sum of money, estimated at about three millions of dollars, to the founding of a free public library in that city. Why should the charitable purpose of the one testator be defeated, while that of the other is sustained ? Why should the courts of New York pronounce the Tilden Trust a failure, while the courts of Illinois declare the John Crerar Library to be an assured fact? Why, under the same general system of jurisprudence prevailing in these two great States, should it be a task of such apparent difficulty to create a valid trust for charity in New York, while it is a matter of comparative ease to accomplish the same result in Illinois? The answer is not difficult to the professional reader, and it is believed that a comparison of the two cases, eliminating all technicalities, will afford an easy solution of these questions to the layman.

Mr. Tilden died in August, 1886, leaving his last will, dated in April, 1884. His only surviving heirs were a sister, two nephews, and four nieces. After creating, by his will, various trusts for the benefit of specific persons named, he devised the entire remainder of his property to trustees, to be held by them during the lives of a niece and grandniece, and to be applied to the purposes named in the will. By the thirty-fifth paragraph of the will he requested his trustees to obtain from the legislature, as speedily as possible, an act of incorporation of an institution to be known as the Tilden Trust, with capacity to establish and maintain a free public library and reading-room in the city of New York, and to promote such scientific and educational objects as his trustees might designate. In case the Tilden Trust should be incorporated during the life of the survivor of the two nieces named, he authorized his trustees to organize the corporation, and to convey to its use the residue of his estate not specifically disposed of by the will, “or so much thereof as they deem expedient.” He then directed that, in case the Tilden Trust should not be so incorporated, “or if, for any cause or reason, my said executors and trustees shall deem it inexpedient to convey the said rest, residue and remainder, or any part thereof, or to apply the same or any part thereof to said institution. I authorize my said executors and trustees to apply the rest, residue and remainder of my property, real and personal, after making good the said special trusts herein directed to be constituted, or such portion thereof as they may not deem it expedient to apply to its use, to such charitable, educational, and scientific purposes as in the judgment of my said executors and trustees will render the said rest, residue, and remainder of my property most widely and substantially beneficial to the interests of mankind.”

The trustees named in the will actually procured the incorporation of the Tilden Trust, and conveyed to it the residue of Mr. Tilden’s estate for the purpose of giving effect to the presumed intention of the testator. At the suit of one of the nephews and heirs at law this provision of the will was defeated, and, by the judgment of the court of last resort of the State of New York, was declared to be invalid.

In a vigorous article which appeared in the Harvard Law Review of March 15, 1892, written by Professor J. Ib Ames of the Cambridge Law School, the writer ascribes the miscarriage of the Tilden Trust to a combination of two causes, the one legislative, the other judicial. The legislative cause he finds in the fact that the English law of charitable trusts has been abolished in New York by statute, and trusts for charity are there put upon the same footing as private trusts, except that property may be given directly to corporations which are authorized to receive and permanently hold bequests for specific charitable purposes. The other, and what he terms the judicial cause, is found in previous decisions of the courts of New York, unnecessary to be here repeated, by which the courts were fettered and hampered in their construction of the Tilden will, being unable to depart from these precedents. And the writer expresses his own conviction that, had the Tilden case arisen in England, or in any of the United States except New York, Michigan, Minnesota, Maryland, Virginia, and West Virginia, the trust for the library would have been sustained.

Whatever may be said as to the justice of the criticism of Professor Ames, another and fatal objection to the validity of the Tilden Trust existed, and upon this objection the judgment of the New York Court of Appeals, in setting aside the trust, was largely based. This objection may perhaps be best expressed in the statement that it nowhere clearly appears in the will that the testator intended to found a free library and reading-room in the city of New York. The extract from the will above quoted indicates a noticeable lack of precision on the part of the testator, first, as to the amount of his bounty which should be devoted to the purposes of the library, and, second, as to whether he desired, in any event, to found such a library. And while, as is said by the court in the final opinion in the Tilden case, at the threshold of every suit for the construction of a will lies the rule that the court must so construe it as to give effect to the intention of the testator, the courts have never gone so far as themselves to make a new will, or to apply any portion of the estate for a purpose which was not specifically and unmistakably authorized by the testator himself.

The uncertainty upon the part of Mr. Tilden as to the amount of his estate which should be devoted to the library, and, indeed, as to whether he desired, in any event, to establish a library will be more apparent by again referring to the language of his will. He directs his trustees, after procuring the incorporation of the Tilden Trust, to convey to the corporation the residue of his estate not specifically disposed of, or so much thereof as they may deem expedient. Here is an absolute and uncontrolled discretion upon the part of the trustees to devote so much or so little of the residue to the purposes of the library as they may see fit. Whether the entire residue of the estate or a mere fraction thereof should ever be applied for the purposes of a library was a question which Mr. Tilden himself did not attempt to determine. In other words, as to the amount of his benefaction thus hypothetically devoted to the library, he may be said to have made no will, but to have left the amount to the discretion of his trustees. This objection alone would doubtless have been fatal to the Tilden Trust under the laws prevailing in any English-speaking country, since it is a rule of universal application in all such countries that, to create a valid trust for charity, there must be a grant or donation, either of a specific sum or of a sum which may be rendered specific and certain by some process fixed by the instrument creating the trust.

But the want of precision as to the amount which should be devoted to the library is perhaps less striking than the uncertainty as to whether any library should ever be called into being. After leaving the amount of the benefaction thus undetermined, the testator proceeds to declare that, if, for any reason, his trustees shall deem it inexpedient to convey any part of the residue of his estate to the Tilden Trust, they are authorized to apply such residue to such charitable, educational, and scientific purposes as in their judgment may be most beneficial to the interests of mankind. Uncertainty as to the amount of the donation is thus emphasized by additional uncertainty as to the object of the gift; confusion is thus worse confounded, and it becomes a legal impossibility to determine what may have been the actual intention of the testator.

Nor is this uncertainty, both as to the purpose and as to the amount of the donation, relieved by what may be termed the general charitable purpose of Mr. Tilden, or by his apparent desire that the residue of his estate should be devoted to purposes which, in the judgment of his trustees, should be “most widely and substantially beneficial to the interests of mankind.”However commendable in the abstract such a purpose may appear, it is too nebulous and undefined to be enforced by the action of the courts. It was for Mr, Tilden to determine what purposes would result in the most lasting and substantial benefit to posterity, and having failed so to determine, to his own lack of precision, rather than to any defect in the existing law, must be attributed the failure of his bounty in this regard.

It was, however, strongly urged in argument that the elements of uncertainty here discussed had been eliminated from the case by the action of the trustees in procuring the incorporation of the Tilden Trust, and in conveying to the corporation the residue of the estate. And it was insisted that, having thus passed the point of uncertainty, the trust for the library might be sustained and its provisions might be enforced in accordance with the intention of the testator as thus supplemented and defined by the action of his trustees. The answer of the court to this contention was a very simple and natural one. It was, in brief, that the validity of the will was to be determined as of the date of Mr. Tilden’s death, and was in no manner dependent upon the subsequent action of his trustees. If at the time of his death the Tilden Trust was valid, the rights of the heirs were subject to the trust; if invalid, the heirs immediately inherited that portion of the estate, and no subsequent action of the trustees could disinherit them.

Stripped of the technical language in which wills are usually couched, that branch of the will under consideration may be summarized substantially, as was done by Mr. Justice Brown in the opinion of the New York Court of Appeals, by assuming that Mr. Tilden said to his trustees. I desire to devote my estate to charitable, educational, and scientific purposes. I have not worked out the details, but, since the laws of New York require this to be done through a corporation, I request you to cause an institution to be incorporated as the Tilden Trust, with capacity to maintain a free library and reading-room in the city of New York, and such other educational and scientific purposes as you shall designate. If you think proper, you may convey to this corporation so much or so little of the residue of my estate as you may determine. If you do not think this course desirable, you may apply the residue to such charitable, educational, and scientific purposes as will, in your judgment, most widely and substantially benefit mankind. So far, therefore, from attempting to establish, by his will, a free library and reading-room, or any other specific and definite trust for charity, Mr. Tilden remitted to his trustees, in the exercise of their uncontrolled discretion, the selection of the charity, as well as the determination of the extent of his bounty which should be devoted to such charity when thus selected. As to the portion of his estate thus tentatively devoted to charity, he made no will, but attempted to delegate the entire subject to the action of his trustees. Their will, not his, was to be the rule of action. The result cannot be better summarized than in the language of Mr. Justice Brown, delivering the opinion of the majority of the New York Court of Appeals, who says : —

“ As the selection of the objects of the trust was delegated absolutely to the trustees, there is no person or corporation who could demand any part of the estate, or maintain an action to compel the trustees to execute the power in their favor. This is the fatal defect in the will. The will of the trustees is made controlling, and not the will of the testator. As was said by the learned presiding justice of the General Term, ‘the radical vice of the entire provision seems to have arisen from the testator’s unwillingness to confer any enforceable rights upon any qualified person or body.’ ”

It is true that a vigorous dissenting opinion was filed by three of the seven judges who sat in final judgment upon the Tilden will. It is true also that the judgment of the court, based upon this bare majority of four out of seven learned judges, has been freely criticised both by lawyers and by laymen. Perhaps the most common form of criticism was that which was generally voiced in the public press at the time in asserting the difficulty of creating valid trusts for charity, and in lamenting the grasping tendency of covetous heirs in seeking to recover a portion of the bounty of their ancestor, which he may have intended to devote to public benefactions. Yet it is believed that the general verdict of the legal profession has been and will continue to be that the Tilden Trust was properly defeated by reason of the vacillation, uncertainty, and lack of precision of Mr. Tilden himself.

If now we turn to the case of the Crerar will, we shall have little difficulty in determining why Chicago is to have one more great public library, while New York is to have one less than was supposed upon the publication of Mr. Tilden’s will.

John Crerar, by birth a Scotchman, and formerly a resident of the city of New York, died in Chicago, October 19, 1889, at the age of sixty-two. He had for many years prior to his death been a successful merchant of Chicago, and had accumulated a fortune of several million dollars. He was never married, and left no surviving kin of nearer degree than first cousins. By his will, consisting of fifty-two separate paragraphs, he devised his entire estate to Norman Williams and Huntington W. Jackson as executors and trustees, with power to sell and dispose of his estate, to convert it into cash, and to hold the proceeds subject to the trusts of the will. By thirty-eight separate paragraphs he gave sums of money aggregating about $800,000 in special legacies to cousins on the mother’s side, to family and personal friends, and to various charities, public and private, including among such legacies $100,000 for the “erection of a colossal statue of Abraham Lincoln,”and other large sums to hospitals, churches and mission schools. He then directed his trustees to set apart so much of his estate as they might deem necessary, the income from which should be applied in payment of costs and expenses of administering the will and its trusts, including compensation to his trustees for their services, the surplus income from this fund to be yearly devoted to the purposes set forth in the fiftieth clause of his will, and when, in the judgment of his trustees, it should be proper, the entire principal sum thus segregated should be devoted to the same purposes.

By the fiftieth clause of his will, Mr. Crerar expressed his recognition of the fact that the greater part of his fortune had been accumulated in Chicago, where he had resided since 1862, and acknowledged with gratitude the kindness which had always been extended to him by his friends and acquaintances in Chicago. He therefore gave all the residue of his estate for the erection, maintenance, and endowment of a free public library, to be called “The John Crerar Library,” and to be located in the city of Chicago, a preference being given to the south division of the city, inasmuch as the Newberry Library was to be located in the north division. He directed his trustees to procure an act of incorporation to carry out the purposes of the bequest, and designated the first board of directors of such corporation. He then added the following general directions as to the library trust: —

“ I desire the building to be tasteful, substantial, and fire-proof, and that a sufficient fund be reserved over and above the cost of its construction to provide, maintain, and support a library for all time. I desire the books and periodicals selected with a view to create and sustain a healthy moral and Christian sentiment in the community, and that all nastiness and immorality be excluded. I do not mean by this that there shall not be anything but hymn-books and sermons, but I mean that dirty French novels and all skeptical trash and works of questionable moral tone shall never be found in this library. I want its atmosphere that of Christian refinement, and its aim and object the building up of character, and I rest content that the friends I have named will carry out my wishes in these particulars.”

He appears to have been ignorant of the existence of any cousins on the father’s side, the will making no provision for such cousins. Shortly after Mr. Crerar’s death, legal proceedings were instituted by several first cousins on the father’s side, residing in Scotland and in Canada, to set aside eight different clauses of the will, including that for the creation of the public library.

Various objections to the library trust were pressed by counsel for the contesting heirs, which need not be here discussed. One objection was urged with much force, and upon substantially the same grounds as in the case of the Tilden Trust, namely, that the amount devoted by the will to the purposes of the library was uncertain and impossible of ascertainment, and that the library clause was therefore void. It was insisted that because the testator had set aside an indefinite and uncertain portion of his estate, the amount of which should rest wholly in the discretion of his trustees, to meet the expenses of administering the trust, including their own compensation, they might devote so much or so little of the estate to these purposes as they should see fit, and thus in effect defeat the library trust or leave nothing for its endowment. Had this objection been well founded in point of fact, the bequest to the library would doubtless have failed, since it is an indispensable element of a valid trust for charity that the sum devoted to the charitable purpose must be either definitely ascertained and determined by the testator, or that he must prescribe some standard by which the amount may be determined. The Supreme Court of Illinois, however, in sustaining the will, held that the setting aside of this fund to meet the expenses of the trust was a proper detail of administration within the control of the testator ; that in any event such expenses were a prior charge upon the entire estate and must be paid as such ; that the trustees had no arbitrary discretion as to the amount of the fund to be thus set apart for expenses, or as to their own compensation ; that the courts would correct any abuse in the exercise of their discretion in this regard ; that these expenses were necessary to the administration of the charity itself, and that the entire residue of the estate, including the fund thus temporarily set aside for expenses, was devoted to the library trust. The court affirm with no uncertain sound the doctrine long prevailing in England and in this country, that the charitable purpose indicated by the testator is the substance, while the ways and means which he may have provided for carrying out his intention are mere matters of detail; that it is the wise policy of the law to uphold charitable bequests, and that if all machinery provided by the testator for giving effect to his charitable purpose shall fail, the courts will still execute the trust in the spirit of the donor. The conclusion reached by the court is compressed in the closing words of the opinion as follows : —

“ No greater wrong could be done the giver of this magnificent bequest than to defeat his clearly expressed wish, that the greater part of his estate, amply sufficient for the purpose, should be expended in the erection, creation, maintenance, and endowment of a free public library in a great city, to bear his name, because, forsooth, in an effort to direct the means of carrying out the purposes of that bequest he may have misconceived the practicability of some of those means, or failed to prescribe with exactness when and how those means should be put into operation.”

The vital point which distinguishes the will of Mr. Tilden from that of Mr. Crerar sufficiently appears from the language here quoted. Indeed, a mere comparison of the library clauses in the two wills sufficiently indicates this point of difference, without the aid of judicial interpretation. Mr. Crerar clearly expressed his wish that the residue of his estate should be expended in the erection, creation, maintenance and endowment of a free public library. Mr. Tilden expressed no such intention. The former desired a library and nothing else, and directed that the entire residue of his estate should be devoted to this purpose. The latter was uncertain, first as to the amount which should be devoted to a possible library, if his trustees should decide to apply any of his estate to that purpose, and second, as to whether, indeed, he desired in any event to found a library. The attempt of Mr. Crerar to create a library is expressed with precision and certainty ; that of Mr. Tilden with doubt and hesitation. The former proceeded directly to give expression to his charitable intention in clear and unmistakable language, while the latter doubted, hesitated, and finally left all to the uncontrolled discretion of his trustees. In brief, Mr. Crerar himself made a will, devoting the entire residuum of his estate to the founding of a great trust for charity. Mr. Tilden made no such will, but merely sought to transmit his testamentary intention to his trustees, to be by them defined and executed.

Even this brief and imperfect review of these two causes célébres may serve to emphasize the injustice of the criticism which was so freely made upon the courts of New York after the failure of the Tilden Trust, that they were inclined upon technical grounds to defeat the clearly expressed intention of testators regarding trusts for charity. And while it is true that the legislation of New York upon this subject shows a wide divergence from the general current of legislation both in England and in America, it is believed that the courts of that State have been inclined to go quite as far toward sustaining trusts for charity, when clearly expressed, as have those of other States. Upon this point Mr. Justice Rapallo, delivering the opinion of the New York Court of Appeals in Holland v. Alcock, 108 N. Y. 312, decided in 1888, clearly shows that the change of legislation in New York in abolishing the English system of charitable trusts has led to no loss or diminution of charity in that State. Upon the contrary, he asserts that New York has substituted a policy which offers the widest field for enlightened benefactions, and he points with pride to the great number of charitable institutions throughout the State of New York. He adds: —

“ It is not certain that any political state or society in the world offers a better system of law for the encouragement of property limitations in favor of religion and learning, for the relief of the poor, the care of the insane, of the sick, and the maimed, and the relief of the destitute, than our system of creating organized bodies by the legislative power and endowing them with the legal capacity to hold property which a private person or a private corporation has to receive and hold transfers of property.”

Nor need the failure of the Tilden Trust cause any apprehension upon the part of benevolently disposed testators lest their purpose to devote any portion of their estates to trusts for charity should miscarry. No testamentary bequests are more jealously guarded or more strictly enforced by the courts in the spirit of the testator than are those for charity. Let it only clearly appear that the testator directs that some portion of his estate, either definitely ascertained, or susceptible of definite ascertainment, is unmistakably devoted to a public benefaction as distinguished from a private trust, and the courts of all countries in which the English system of jurisprudence prevails arc prompt to give effect to such intention. That the Tilden will failed in this regard is the fault, not of the courts by which it was construed, but rather of the testator who failed to give proper expression to his possible intention. It has been generally understood among the legal profession that this will was drawn by Mr. Tilden himself, and that it was possibly submitted for approval to the late Mr. Charles O’Conor. Be this as it may, the failure of the Tilden Trust has added one more to the list of eminent judges and lawyers, including Lord St. Leonards and Mr. O’Conor himself, who have failed to draw their own wills in such manner as to successfully withstand attack by their heirs at law and next of kin.

James L. High.